Op Ed
Op EdsOP. ED.

   

Before the Code of Criminal Procedure, 19732 (hereinafter referred to as “the new Act”), came into force; the related law in force was the Code of Criminal Procedure, 1898 (hereinafter referred to as “the old Act”). The power of revision was primarily contained in Section 435 of the old Act. In the old Act, no distinction was made for the exercise of revisional powers apropos interlocutory or other category of orders. The result being that even with regard to purely interlocutory orders, revisional powers could be exercised. The vast power of revision conferred in the old Act was one of the main contributing factors in the delay of disposal of criminal cases. To remedy this, the 41st Law Commission Report suggested the taking away of the revisional powers of the courts apropos interlocutory orders. This suggestion was adopted in the new Act as is clear from the Statement of Objects and Reasons of the new Act and more particularly from the provision contained in Section 397(2)3 of the new Act which reads as under:

(2) The powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.

The legislature did not think it necessary to provide any definition of the term interlocutory order either in the definition clause or in the body of Section 397 of the new Act. This led to a lot of confusion. The term interlocutory order vis-à-vis the exercise of the revisional powers as contained in Section 397 of the new Act came to be considered in many a cases after the passing of the new Act.

The author has, before writing this article, meticulously perused the only four-Judge Bench decision of the Supreme Court on the point, all the three-Judge Bench and all the two-Judge Bench decisions of the Supreme Court on the point including the two-Judge Bench decision which has been approved by the only four-Judge Bench decision of the Supreme Court on the point.

The first three-Judge Bench decision of the Supreme Court on the point came on 23-11-1976, in Parmeshwari Devi case4 in which it was essentially held that an order though literally interlocutory cannot be treated as interlocutory if it is conclusive as to a person who is not a party to the enquiry or trial against whom it is directed i.e. if it is passed against a stranger to the case who would have no opportunity of challenging it after a final order is made affecting the parties concerned provided the order adversely affects the stranger's rights.

Then came a two-Judge Bench decision of the Supreme Court on the point on 29-7-1977, titled Amar Nath case5. The following essential tests were laid down by the Bench to determine what is an interlocutory order and what is not an interlocutory order:

Test on what is an interlocutory order

The term interlocutory order in Section 397(2) of the 1973 Code has been used in a restricted sense and not in any broad or artistic sense and it merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or the liabilities of the parties.

Test on what is not an interlocutory order

1. Any order which substantially affects the right of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order; and

2. orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be interlocutory orders.

Then came a three-Judge Bench decision of the Supreme Court on the point on 31-10-1977, titled Madhu Limaye case6 in which the judgment of the Supreme Court in Amar Nath case7 was partially affirmed on the point of what is meant by the term interlocutory order. In this case, it was held that the term interlocutory order as used in Section 397 of the new Act does not invariably mean the converse of the term final order. After clarifying the above position, the following yardstick was given to determine whether a particular order is not an interlocutory order; which is as follows:

an order rejecting the plea of the accused on a point which, when accepted, will conclude the particular proceeding, will surely be not an interlocutory order within the meaning of Section 397(2).

Then came the only four-Judge Bench decision of the Supreme Court (till date) on the point on 7-12-1979, titled V.C. Shukla case8. In this case, after discussing the judgments in Amar Nath case9 and Madhu Limaye case10, they were approved on the point of law laid down therein apropos what is not an interlocutory order. It was also held that intermediate, quasi-final and final orders are revisable. Apart from these, the following law was laid down in V.C. Shukla case11:

7. … the term “interlocutory order” used in the Code of Criminal Procedure has to be given a very liberal construction in favour of the accused in order to ensure complete fairness of the trial … If, therefore, the right of revision was to be barred, the provision containing the bar must be confined within the four corners of the spirit and the letter of the law. In other words, the revisional power of the High Court or the Sessions Judge could be attracted if the order was not purely interlocutory but intermediate or quasi-final.

Then came a three-Judge Bench decision of the Supreme Court on the point on 13-7-2017, titled Girish Kumar Suneja case12 in which affirming the decision in Madhu Limaye case13, it has been held that in Madhu Limaye case14 it had been held that an intermediate order is one which is interlocutory in nature but when reversed, it has the effect of terminating the proceedings and thereby resulting in a final order. Finally, it was held in Girish Kumar Suneja case15 that revisional powers can be exercised only against a final order or an intermediate order, namely, an order which if set aside would result in the culmination of the proceedings.

The decision in Girish Kumar Suneja case16 appears to be not laying down the correct law — on the point as to what is an interlocutory order — due to the following reasons:

1. Firstly, in Madhu Limaye case17, the yardstick — not exhaustive — to determine what is not an interlocutory order was provided. Nowhere in Madhu Limaye case18, it was held as to what constitutes an interlocutory order. But in Girish Kumar Suneja case19 it has been wrongly taken to mean that the test laid down in Madhu Limaye case20 is exhaustive for determining what is an interlocutory order — rather than what is not an interlocutory order. There is an ocean of difference between the tests — if they (the tests) are not exhaustive — of what is an interlocutory order and what is not an interlocutory order. An order may not be interlocutory in nature, but it does not mean that other orders cannot be interlocutory in nature. For instance an order which is such that when reversed, it has the effect of terminating the proceedings and thereby resulting in a final order is not an interlocutory order, but it does not mean that there cannot be other orders which are not interlocutory in nature.

2. Secondly, in Girish Kumar Suneja case21, it has been held that revisional powers can be exercised only against a final order or an intermediate order, namely, an order which if set aside would result in the culmination of the proceedings. This goes against the law laid down by an earlier two-Judge Bench Supreme Court decision in Amar Nath case22 which was affirmed as abovestated by a four-Judge Bench in V.C. Shukla case23. In Amar Nath case24, it was held that orders which substantially affect the right of the accused, decide certain rights of the parties, and which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be interlocutory orders. That is to say that in Amar Nath case25 a few other categories of orders have been spoken about which would not fall in the category of interlocutory orders. As per the law of precedents, the law laid down by a two-Judge Bench of the Supreme Court and later discussed and affirmed by a four-Judge Bench of the Supreme Court cannot be given a go-by by a subsequent three-Judge Bench decision of the Supreme Court. And in case it does, what is binding is the law laid down by the two-Judge Bench and later discussed and affirmed by the four-Judge Bench rather than the three-Judge Bench decision of the Supreme Court.

Till now, we saw the law laid down by the various Benches of the Supreme Court on the point as to what is and what is not an interlocutory order for the purpose of exercise of revisional powers under Section 397 of the new Act; we also saw that Girish Kumar Suneja case26, due to the aforementioned reasons, does not lay down the correct law on the point in issue.

Before we succinctly see as to what constitutes an interlocutory order and what does not ; we shall examine the law laid down in Amar Nath case27 which is essentially the reason behind the conundrum in determining what is and what is not an interlocutory order.

In Amar Nath case28, it has been held that an interlocutory order is an order of a purely interim or temporary nature which do not decide or touch the important rights or the liabilities of the parties whereas an order which substantially affects the right of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order; also orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be interlocutory orders. Now, the million-dollar question is when can it be said that an order affects the rights or liabilities of a party. In Amar Nath case29, a few examples and some guideline have been provided for the same which are as follows:

1. Orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceeding amount to interlocutory orders against which no revision would lie under Section 397(2) of the 1973 Code.

2. The judgment in Central Bank of India Ltd. v. Gokal Chand30 is referred to wherein it is held that the term interlocutory order does not include interim orders which are merely procedural and do not affect the rights or liabilities of the parties like orders pertaining to the summoning of witnesses; discovery, production and inspection of documents; issue of a commission for examination of witnesses; inspection of premises; fixing a date of hearing and the admissibility of a document or the relevancy of a question. All these interim orders are steps taken towards the final adjudication and for assisting the parties in the prosecution of their case in the pending proceeding; they regulate the procedure only and do not affect any right or liability of the parties. In Amar Nath case31, relying on the above judgment in Central Bank of India Ltd. v. Gokal Chand32, it has been held that the aforesaid decision clearly illustrates the nature and incidents of an interlocutory order and the incidents given by this Court constitute sufficient guidelines to interpret the connotation of the word interlocutory order as appearing in sub-section (2) of Section 397 of the 1973 Code.

An order relating to summoning or refusing to summon a witness or an order refusing to or admitting a document — in general — is considered as an order affecting the rights or liabilities of a party; but as per the meaning given in Amar Nath case33, orders which are steps in aid of the pending proceeding, which are steps taken towards the final adjudication and for assisting the parties in the prosecution of their case in a pending proceeding and which regulate the procedure only are considered not to affect any rights or liabilities of parties.

Here the problem is that the test as provided above is imperfect. It can be interpreted loosely given the imperfect yardstick provided for in Amar Nath case34. When would an order be considered as affecting the rights and liabilities of parties cannot be culled out with certitude on applying the above tests and hence the confusion.

The solution to this is either an authoritative pronouncement on the true and exhaustive meaning of the term interlocutory order by a larger Bench of the Supreme Court or the best solution would be if the legislature makes suitable amendments in the new Act to make it crystal clear as what would and what would not constitute interlocutory order vis-à-vis Section 397(2) of the new Act.

The other two-Judge Bench decisions35 of the Supreme Court although worth perusal, neither legally enlarge nor curtail the scope of the term interlocutory order laid down in the abovereferred judgments.

On the basis of the law laid down by the Supreme Court, the following is an interlocutory order:

An order of a purely interim or temporary nature which does not decide or touch the important rights or the liabilities of the parties.

On the basis of the law laid down by the Supreme Court in various pronouncements, the following are not interlocutory orders:

1. Any order which substantially affects the right of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order.

2. Orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be interlocutory orders.

Note for Points 1 and 2: Orders which are steps in aid of the pending proceeding, and which are steps taken towards the final adjudication and for assisting the parties in the prosecution of their case in a pending proceeding and which regulate the procedure only are considered not to affect any rights or liabilities of parties.

3. Orders rejecting the plea of a party on a point which, when accepted, will conclude the particular proceeding.

4. Orders passed against a stranger to the case who would have no opportunity of challenging it after a final order is made affecting the parties concerned provided the order adversely affects the stranger's rights.

Rider: The term interlocutory order used in the new Act has to be given a very liberal construction in favour of the accused in order to ensure complete fairness of the trial (as per the law laid down by the four-Judge Bench in V.C. Shukla case36).


† Civil Judge, Senior Division, Tarana, Ujjain, Madhya Pradesh. Author can be reached at <dagliyashrikrishna@gmail.com>.

2. Code of Criminal Procedure, 1973.

3. Criminal Procedure Code, 1973, S. 397(2).

4. Parmeshwari Devi v. State, (1977) 1 SCC 169.

5. Amar Nath v. State of Haryana, (1977) 4 SCC 137.

6. Madhu Limaye v. State of Maharashtra, (1977) 4 SCC 551.

7. Amar Nath v. State of Haryana, (1977) 4 SCC 137.

8. V.C. Shukla v. State, 1980 Supp SCC 92.

9. Amar Nath v. State of Haryana, (1977) 4 SCC 137.

10. Madhu Limaye v. State of Maharashtra, (1977) 4 SCC 551.

11. V.C. Shukla v. State, 1980 Supp SCC 92.

12. Girish Kumar Suneja v. CBI, (2017) 14 SCC 809.

13. Madhu Limaye v. State of Maharashtra, (1977) 4 SCC 551.

14. Madhu Limaye v. State of Maharashtra, (1977) 4 SCC 551.

15. Girish Kumar Suneja v. CBI, (2017) 14 SCC 809.

16. Girish Kumar Suneja v. CBI, (2017) 14 SCC 809.

17. Madhu Limaye v. State of Maharashtra, (1977) 4 SCC 551.

18. Madhu Limaye v. State of Maharashtra, (1977) 4 SCC 551.

19. Girish Kumar Suneja v. CBI, (2017) 14 SCC 809.

20. Madhu Limaye v. State of Maharashtra, (1977) 4 SCC 551.

21. Girish Kumar Suneja v. CBI, (2017) 14 SCC 809.

22. Amar Nath v. State of Haryana, (1977) 4 SCC 137.

23. V.C. Shukla v. State, 1980 Supp SCC 92.

24. Amar Nath v. State of Haryana, (1977) 4 SCC 137.

25. Amar Nath v. State of Haryana, (1977) 4 SCC 137.

26. Girish Kumar Suneja v. CBI, (2017) 14 SCC 809.

27. Amar Nath v. State of Haryana, (1977) 4 SCC 137.

28. Amar Nath v. State of Haryana, (1977) 4 SCC 137.

29. Amar Nath v. State of Haryana, (1977) 4 SCC 137.

30. AIR 1967 SC 799.

31. Amar Nath v. State of Haryana, (1977) 4 SCC 137.

32. AIR 1967 SC 799.

33. Amar Nath v. State of Haryana, (1977) 4 SCC 137.

34. Amar Nath v. State of Haryana, (1977) 4 SCC 137.

35. Haryana Land Reclamation and Development Corpn. Ltd. v. State of Haryana, (1990) 3 SCC 588; Om Kumar Dhankar v. State of Haryana, (2012) 11 SCC 252; Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460; State of Rajasthan v. Fatehkaran Mehdu, (2017) 3 SCC 198; Mohit v. State of U.P., (2013) 7 SCC 789; Urmila Devi v. Yudhvir Singh, (2013) 15 SCC 624; MCD v. Girdharilal Sapuru, (1981) 2 SCC 758; Gautam Navlakha v. National Investigation Agency, 2021 SCC Online SC 382; State of Gujarat v. Afroz Mohammed Hasanfatta, (2019) 20 SCC 539; S.K. Bhatt v. State of U.P., (2005) 3 SCC 634; K.K. Patel v. State of Gujarat, (2000) 6 SCC 195; Bhaskar Industries Ltd. v. Bhiwani Denim & Apparels Ltd., (2001) 7 SCC 401; Sethuraman v. Rajamanickam, (2009) 5 SCC 153; Dhariwal Tobacco Products Ltd. v. State of Maharashtra, (2009) 2 SCC 370; D. Devaraja v. Owais Sabeer Hussain, (2020) 7 SCC 695 and Rajendra Kumar Sitaram Pande v. Uttam, (1999) 3 SCC 134.

36. V.C. Shukla v. State, 1980 Supp SCC 92 : 1980 SCC (Cri) 695.

Case BriefsHigh Courts

Rajasthan High Court: Dinesh Mehta, J. allowed the petition and remarked that expeditious disposal of cases is necessary but equally necessary is to observe mandate of law including procedural law. 

 

The instant petition was filed under Section 482 of the Code of Criminal Procedure, 1973 i.e., CrPC, challenging the order passed by the Trial Court whereby the petitioner was declared absconder and proceedings under Sections 82 and 83 CrPC was initiated. 

 

Counsel for petitioner submitted that without recording its satisfaction about petitioner’s intention to avoid the proceedings or to abscond, the trial Court initiated proceedings under Sections 82 and 83 of CrPC and issued standing warrant against the petitioner, ignoring the facts and law involved in the present case. 

 

Counsel for respondents submitted that the petitioner never received any summons issued by the Trial Court and the petitioner, despite residing in Jodhpur, intentionally avoided the service of the summons and, therefore, the order passed by the trial Court is perfectly just and valid. 

 

The Court observed that on perusal of Sections 82 and 83 CrPC, it is clear that action under Section 82 CrPC is the pre-requisite to proceed under section 83 CrPC. Section 82 CrPC provides the court power to issue a proclamation upon fulfillment of the following conditions 

  1. Court already issued a warrant
  2. Court has reason to believe (i) such person has absconded or concealed himself such that warrant can’t be executed.

The Court relied on judgment Inder Mohan Goswami v. State of Uttaranchal (2007) 12 SCC 1 wherein it was observed: 

“51. In complaint cases, at the first instance, the court should direct serve of the summons along with the copy of the complaint. If the accused seems to be avoiding the summons, the court, in the second instance, should issue a bailable warrant. In the third instance, when the court is fully satisfied that the accused is avoiding the court’s proceeding intentionally, the process of issuance of the non bailable warrant should be resorted to. Personal liberty is paramount; therefore, we caution courts at the first and second instance to refrain from issuing non-bailable warrants.” 

 

The Court observed that the Court initiated action under sections 82 and 83 CrPC in the absence of any cogent reason to show that the accused is absconding such that warrant cannot be served. A mere recording a ‘it appears’ that accused has absconded is insufficient to proceed under section 82 CrPC  because of the expression “such warrant cannot be executed”.  

  

The Court noted that the alleged absconding or concealment must be for the purpose of avoiding the warrant. The expression “such warrant cannot be executed” is extremely important because what is required to be ascertained is, that the accused is absconding despite being aware of the warrant. In the absence of such a finding, it cannot be said that the accused is dodging or evading the warrant. 

  

The Court opined that before issuing standing warrant and initiating proceedings under Sections 82 and 83 CrPC, the trial Court is required to record a categorical finding/ satisfaction that in spite of knowledge of the warrant, the petitioner has avoided appearance in the Court or has evaded the warrant.  

  

The Court further noted that the endeavor of a Court should be to ensure proper compliance of the statutory provisions and service of the summons as mandated by law. Service of summons is a bed-rock of principles of natural justice. The Courts should not rush to issue a standing warrant and initiate proceedings under Sections 82 and 83 CrPC, unless they are satisfied that the accused is intentionally evading or circumventing the warrants in order to avoid prosecution. 

 

The Court thus held the present petition is allowed and impugned order dated May 16, 2022 is quashed and set aside. [Bhavin Tanwar v. State of Rajasthan v. State of Rajasthan, SB Criminal Misc. (Pet) No 3072 of 2022, decided on May 25, 2022] 


Appearances 

For Petitioner(s): Mr. C.S. Kotwani and Ms. Swati Shekhat 

For Respondent(s): Mr. Mahipal Bishnoi 


*Arunima Bose, Editorial Assistant has reported this brief.

On the Victim's Right to Participation
Op EdsOP. ED.

Through its judgment in Rekha Murarka v. State of W.B.,1 the Supreme Court of India has attempted to strike a balance between the victim’s right to participation and the rights of the accused. The judgment is at once a cause of celebration as well as a cause of concern. Whereas on the one hand, the Supreme Court has closed a legal door on the victim’s participation, on the other hand it has opened up a significant avenue. Overall, the judgment undoubtedly furthers the ambiguity in the position of the victim’s right to participate in our criminal justice system. This post attempts to objectively uncover this ambiguity, if not resolve it.

Summarily, the Court has refused the right of a private counsel engaged by the victim to cross-examine the witness or to make oral arguments in general. Its interpretation is based on a conjoined reading of Sections 24(8)2 and 301(2)3 of the Code of Criminal Procedure, 1973 (CrPC). The Court proffers that the term “assist” used in Section 24(8) CrPC cannot be so interpreted as to mean a conduct of prosecution by the private counsel. The task of prosecution remains suited to a Public Prosecutor alone.

The Court’s reasoning can be faulted on several grounds. Firstly, the Court assumes that the right of the victim’s counsel to participate in the trial is a zero-sum game between the Prosecutor and the counsel. It extends the assumption to an extremity by implying that any oral arguments or cross-examination of witnesses would tantamount to taking over the prosecution itself. In its reasoning, the Court does not take into account the numerous other permutations and combinations of victim participation that exist between the victim having no say at all and the victim’s counsel taking over the function of the Prosecutor. As the procedure in the International Criminal Court, however, goes on to show, the concerns of the victims can be taken into account by the court at several stages of the trial without any prejudice to either the accused or the prosecutor’s discharge of his functions.

Secondly, the instances cited by the Court in support of its reasoning highlight the abovementioned assumption. The Court holds that the victim’s counsel cannot be allowed to make oral arguments or cross-examine victims because it may lead to a weakening of the prosecution’s case; or that the trial may devolve into a vindictive battle between the counsel of the victim and the accused; or the victim’s advocate may not be experienced enough to advocate on the victim’s behalf. These hypotheticals betray the Court’s lack of faith in the victim’s advocate. The Court does not envision the role of the victim’s counsel to be one based on cooperation and collaboration in securing justice, but instead assumes that the victim’s advocate would necessarily be petty and “vindictive”.

Thirdly and corollary to the above, the judgment displays the faith of the Court in the office of Public Prosecutor and indeed, the same is well placed to a large extent. The Court should not, however, have ignored the plight of the victim in the process. It was with the intention to secure a greater say for the victim that Section 2(wa)4 and Section 24(8) proviso5 CrPC were introduced within our criminal justice system. Irrespective of the faith of the Court, the prosecution cannot be substituted for a private counsel that works to secure the interests of the victim. The statutory promise of Section 301(2) CrPC in allowing written arguments after the closing of evidence is hardly enough to secure effective participation of the victim. From this perspective, the judgment is a setback to the cause of securing justice for the victims.  

Fourthly, even if we were to agree with the reasoning that allowing oral arguments or cross-examination will tantamount to the prosecution being overtaken by the victim’s counsel, it is certainly not unheard of or completely impermissible within the scheme of our criminal justice system. Whereas Section 301(2) CrPC is applicable to “any court”, Section 3026 allows for the prosecution to be conducted by any person or a pleader engaged by such person with the permission of the Magistrate’s Court. Principally speaking, it is dichotomous that such prosecution prejudicially affects the right of the accused in a Court of Session but has no such adverse effects on the rights of the accused in a Magistrate’s Court.

Despite the abovementioned flaws, a careful perusal of the final paragraphs of the judgment illuminates an oscillation from regression to progression. In Zahira Habibulla H. Sheikh v. State of Gujarat7 the Court had held that where the prosecuting agency or the Prosecutor was not acting in the requisite manner, the use of Section 311 CrPC8 to summon material witnesses and to examine them was warranted by the courts. In the impugned case, the court extended this principle, by granting the victim’s counsel the right to channel their questions and arguments through the court under Section 311 CrPC and Section 165 of the Evidence Act9 (IEA). In this respect, the Court remarks that:

11.5. …if the victim’s counsel finds that the Public Prosecutor has not examined a witness properly and not incorporated his suggestions either, he may bring certain questions to the notice of the court. If the Judge finds merit in them, he may take action accordingly by invoking his powers under Section 311 CrPC or Section 165 of the Evidence Act, 1872.10

In Rekha Murarka case11, the Supreme Court has given a judicial stamp of approval to this earlier decision. To an extent, the judgment unsettles the jurisprudence established by the case of Mohanlal Shamji Soni v. Union of India,12 that the Court should not use Section 311 CrPC to fill a lacuna left by the prosecution.

More importantly, however, this change in the jurisprudence of Section 311 CrPC is bound to have far-reaching implications for victim justice generally. Under the previous scheme of victim participation, the only avenue available for the victim’s counsel to participate in the proceedings was under Section 301(2) CrPC wherein the counsel could make only written statements after the closing of evidence. Section 311 CrPC, on the other hand, can be invoked by the court at any stage of the inquiry, trial or other proceeding under CrPC. By extension, the Supreme Court has now expressly permitted the victim’s counsel to request the court to invoke Section 311 CrPC and summon/examine material witnesses at any of the stages mentioned above.

There are a plethora of decisions13 of the Supreme Court casting a duty upon the courts for invoking Section 311 CrPC to secure justice; however, the manifest permission to use Section 311 CrPC in order to secure victim justice is certainly a breath of fresh air. If the same translates into practice, this development has the potential to secure an unprecedented victory for the victim’s advocates. For the above to have an effective impact on securing victim’s participation, however, much publication and dissemination of this precedent is required. 


* Assistant Professor of Law, Rajiv Gandhi National University of Law, Punjab, BA LLB (Hons.), LLM  (Criminal Law and Constitutional Law). Author can be reached at <ankitkaushik@rgnul.ac.in>.

Chhattisgarh High Court
Case BriefsHigh Courts

Chhattisgarh High Court: Sanjay K Agrawal, J. dismissed the petition being devoid of merits.

Facts

The facts of the case are such that the Chhattisgarh State Economic Crime Bureau and Anti Corruption Bureau registered an offence against the petitioner and other persons for offence under Section 13(1)(d) read with Section 13(2) of Prevention of Corruption Act i.e. PC Act and Sections 120B & 420 of the Penal Code, 1860 i.e. IPC and sought sanction from respondent 1 for prosecution against the petitioner herein and other persons under Section 19(1)(b) of the PC Act and Section 197 of Criminal Procedure Code i.e. CrPC. The petitioner herein calls in question legality, validity and correctness of the impugned order dated 15-5-2019 passed by respondent No.1 in exercise of power conferred under Section 19(1)(b) of the Prevention of Corruption Act, 1988 (for short, ‘the PC Act’) read with Section 197 of the Code of Criminal Procedure, 1973 (for short, ‘the CrPC’) granting sanction for prosecution against him for offence under Section 13(1)(d) read with Section 13(2) of the PC Act and Sections 120B & 420 of the IPC.

Issue

The sanction for prosecution ought to have been placed before the Sub- Committee of the Cabinet, as the Administrative Department has not accorded sanction for prosecution of the petitioner modified by subsequent circular. Since that procedure was not followed by respondent 1, the order granting sanction is illegal and liable to be set-aside

Counsel for the petitioners submitted that the order granting sanction is illegal, contrary to law and deserves to be set-aside because if there is difference of opinion between two Departments of the State i.e. parent Department, here Water Resources Department and the Law Department, then the procedure laid down in the circular and its clarification issued by the State Government is required to be followed. It was further submitted that sanction can only be obtained in coordination with the Minister of Council of Political Affairs or with its concurrence and no such procedure has been followed in the present case.

The Court perused section 19 of PC Act and stated that previous sanction for prosecution is required in respect of a public servant who is employed and is not removable from his office save by or with the sanction of the State Government. The Court observed that the communication of alleged disagreement with respect to grant of sanction qua the petitioner has been made by the Chief Engineer, Water Resources Department, Raipur to the Secretary, Government of Chhattisgarh, Water Resources Department dated after the order granting sanction for prosecution under Section 19 of the PC Act and Section 197 of the CrPC was passed, whereas the disagreement was required to be expressed and to be sent by the Administrative Department before the question of sanction is considered by Respondent 1 herein.

The Court relied on judgment Subramanian Swamy v. Manmohan Singh, (2012) 3 SCC 64 and observed despite memo and reminder received by the Administrative Department – respondent 2, no response was served to respondent 1 who is the competent authority to consider the issue of grant of sanction and therefore in absence of any disagreement, the competent authority to grant sanction being the Department of Law & Legislative Affairs has proceeded to consider the matter and issued order granting sanction for prosecution against the petitioner and others. It was further established that despite memo dated 22-3-2019 reiterated by reminder dated 25-4- 2019, the Administrative Department kept pin-drop silence over the matter.

The Court further relied on judgment State of Madhya Pradesh v. Virender Kumar Tripathi, (2009) 15 SCC 533 and observed that interdicting a criminal proceeding midcourse on ground of invalidity of the sanction order will not be appropriate unless failure of justice has occasioned by any such error, omission or irregularity in the sanction and such failure of justice can be established not at the stage of framing of charge but only after the trial has commenced and the evidence is led.

The Court held “ultimately, finding no opinion of the Administrative Department (respondent 2) either way, the Department of Law & Legislative Affairs being the authority competent to grant sanction has rightly considered the issue and granted sanction for prosecution against the petitioner”.

[KK Vashishta v. State of Chhattisgarh, 2021 SCC OnLine Chh 621, decided on 15-03-2021]


Arunima Bose, Editorial Assistant has reported this brief.


 Appearances:

For Petitioner: Mr. B.P. Sharma and Mr. M.L. Sakat

For Respondents / State: – Mr. Jitendra Pali and Mr. Ravi Kumar Bhagat

Op EdsOP. ED.

“Quando lex aliquid alicui concedit, conceditur et id sine qua res ipsa esse non potest.” [1]

Section 482[2] of the Code of Criminal Procedure, 1973 (“CrPC/Code”) saves the inherent power of the High Court(s). As per the said provision, “Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.”

A bare perusal of the provisions of Section 482 CrPC would clearly demonstrate that the said section does not confer any new power on the High Court[3]. In fact, it only saves the inherent power, which every High Court possessed before the enactment of the Code. Further, the provision envisages three circumstances under which the inherent jurisdiction may be exercised, namely: to give effect to an order under the Code; to prevent abuse of the process of court and to otherwise secure the ends of justice.

As per the Supreme Court[4], “The saving of the High Court’s inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution.” Pertinent to mention here that the Courts have consistently cautioned[5] that though, the inherent jurisdiction under Section 482 CrPC is wide, however, the same must be “exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist.”

Under the Code of Civil Procedure, 1908 (“CPC”), provision[6] for saving the inherent power of the Courts, including that of the trial courts, exists, however, no provisions for saving of inherent powers of the courts, subordinate to the High Court, exist under the Code/CrPC. Despite this, the subordinate courts, even in criminal proceedings are not handicapped to exercise their ancillary/auxiliary powers to do what is absolutely necessary for dispensation of justice. It is trite law[7], “[u]nder such circumstances in order to do what is absolutely necessary in the ends of justice or prevent prejudice or miscarriage of justice what is not prohibited could be taken as permitted because the Code of Criminal Procedure cannot be taken to have contemplated and provided for every contingency by making exhaustive provisions to meet the situations”.

As per the  Supreme Court[8], “All courts, whether civil or criminal, possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice.” Clearly, despite the existence of an express provision under the Code/CrPC, saving the inherent powers of trial courts, all criminal courts are possessed of an “auxiliary power subject to restrictions which justice, equity, good conscience and legal provisions demand, provided it will not unnecessarily prejudice somebody else.”[9]

The inherent powers of the High Court(s) have, time and again, been invoked, inter alia, for seeking quashing of criminal complaint(s)/FIR(s) and proceedings, inter alia, in the instances where; criminal cases have a predominant and an overwhelming element of civil dispute, which the victim and the offender have settled[10]; continuance of prosecution will be a futile exercise which would serve no purpose[11]; allegations made in the first information report or the complaint, even if they are taken on their face value and accepted in their entirety, do not prima facie constitute any offence[12] or make out a case against the accused; allegations made in the FIR or complaint are so absurd and inherently improbable[13] on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused; quashing of orders of issuance of summons/process[14]; etc.

Another instance where the inherent powers of the High Court(s) is often invoked is for the restoration of criminal complaint[15], dismissed for non-prosecution. However, no such power of restoration of criminal complaint, dismissed for non-prosecution, or power of review exists with the trial/Magistrate’s Court. In fact, it is trite law[16], under the Code/CrPC no power is conferred on the Magistrate to review or recall the order passed by him[17]. Accordingly, the only remedy available with the complainant under such an event is the invocation of the inherent powers of the High Court.

In this regard, the Supreme Court in A.S. Gauraya v. S.N. Thakur[18], observed, “[b]ut the question remains whether a Magistrate can restore a complaint to his file by revoking his earlier order dismissing it for the non-appearance of the complainant and proceed with it when an application is made by the complainant to revive it…..The Criminal Procedure Code does not contain any provision enabling the criminal court to exercise such an inherent power.”

These principles were reiterated by the Punjab and Haryana High Court[19] to the effect, “The Code of Criminal Procedure does not confer any power to review/recall an order. The only situation, in which a court may legitimately alter its order is, where it proposes to correct clerical and/or arithmetical errors. A complaint, once dismissed for failure of the complainant to put in appearance, therefore, cannot be restored.”

Pertinently, under CPC, the provisions for restoration of suit[20] dismissed for failure of service of summons[21] and non-appearance of parties[22]; setting aside of an order of ex parte proceedings[23] and setting aside of ex parte decree[24], exist. However, under the Code/CrPC, once a complaint is dismissed for non-prosecution and/or the accused is discharged or acquitted, in terms of the provisions of Sections 249[25] and 256[26]  CrPC respectively, the Magistrate cannot be approached by the complainant for the purpose of restoration of such complaint/ proceeding, even for the reasons of “sufficient cause” or otherwise. In fact, as aforementioned, under such circumstances, the only remedy available with such a complainant would be to invoke the jurisdiction of High Court(s) in terms of Section 482 CrPC. Understandably, in the absence of any such power on the Magistrate’s Court to review/recall/set aside its order for dismissal of complaint for non-prosecution, the burden of the High Courts intensifies to a great deal. At the same time, the absence of remedy/recourse with a bona fide complainant may also result in undue harassment, delay in criminal proceeding/prosecution, incurring of additional expenses, etc. 

The Law Commission of India (“the Law Commission”) as early as the year 1991, carried out an exhaustive study, inter alia, of the provisions of Section 256 CrPC, especially in the context of absence of power of the trial/ Magistrate’s Court to restore criminal complaint/proceedings and submitted its Report[27] on its comments and recommendations. The Law Commission in the said Report duly acknowledged that the absence of such power of restoration of criminal complaint/ proceeding with the trial court may, “cause and are likely to cause serious hardship and injustice in practice in several cases.” It was further appreciated by the Law Commission that even in the cases where such absence of the complainant may be justified by the reasons of “sufficient case”, the consequential order of acquittal of the accused for the reasons of such absence may result in throwing out of a meritorious case. Under such an event of passing of an order of acquittal, it was recognised, would bar a subsequent trial before the same court and the complainant would be bound/burdened to take recourse to remedies of appeal, etc., which may prove costly and tedious. Further, acknowledging, “a meritorious complaint of a complainant cannot be allowed to be thwarted, only on the ground that the complainant was unable to remain present”, the Law Commission was of the opinion that the power to set aside dismissal and restoring the complaint has to be conferred with the criminal/Magistrate’s Court. Accordingly, the Law Commission recommended the amendment to Section 256 CrPC by incorporating the provision of initial termination of proceedings on complainant’s absence which may ultimately lead to acquittal, unless the order of such termination is set aside in the manner proposed. As per the recommendation of the Law Commission, the order of termination of proceedings may be set aside within a period of 30 (thirty) days of such order, on an application of the complainant and the service/notice of the same on the accused.

The Law Commission, again vide its 233rd Report[28] reiterated its previous recommendations made in the year 1991 and recommended, “appropriate  amendments in Sections 249 and 256 of the Code of Criminal Procedure, 1973 inserting provisions on the lines of Order 9 CPC, enabling restoration of complaints.” Pertinently, in its earlier Report (141st Report), the Law Commission had also recommended amendment of Section 482 CrPC for conferment of inherent powers also on all subordinate criminal courts, other than the High Court. Clearly, the recommendations were premised on the understanding that the same may enable reducing the burden of superior courts and ensuring that no injustice is resulted as a course of administration of criminal justice.

It is settled law, procedural prescriptions/laws are the handmaid and not the mistress; a lubricant, not a resistant, in the administration of justice[29]. As per the Supreme Court[30], “Procedure is meant to subserve and not rule the cause of justice. Procedural laws must be liberally construed to really serve as handmaid. Technical objections which tend to defeat and deny substantial justice should be strictly discouraged.” Further, considering the dynamic nature of laws and dependent on the need of society, laws must adapt and modify so that such societal needs are properly catered to. In light of recommendations of the Law Commission and being cognizant of the fact that the absence of provisions of restoration of criminal complaint, dismissed for some unforeseeable and unavoidable reasons would result in aggravating the plight of the victim, complainant and the overburdened judicial system, it is only apt that the recommendations of the Law Commission for amendment of the provisions of Sections 249 and 256 CrPC are adopted under the Code. In the alternate or simultaneously, explicit provision for recognition of the ancillary powers or conferment of inherent powers on trial/ Magistrate’s Court may be introduced under the Code so that the mere absence of procedural provisions, does not deprive the victims of abuse of their substantial rights and proper legal recourse.


*Managing Associate, L&L Partners Law Offices

[1] Latin maxim meaning, “When the law gives anything to anyone, it also gives all those things without which the thing itself could not exist.”

[2] Section 482 CrPC  

[3] Priya Vrat Singh v. Shyam Ji Sahai, (2008) 8 SCC 232 

[4] State of Karnataka v. L. Muniswamy, (1977) 2 SCC 699 

[5] State of A.P. v. Golconda Linga Swamy, (2004) 6 SCC 522 

and State of A.P. v. Gourishetty Mahesh, (2010) 11 SCC 226 

[6] 151. Saving of inherent powers of Court.—Nothing in this Code shall be deemed to limit or otherwise affect the inherent powers of the court to make such orders as may be necessary for the ends of the justice or to prevent abuse of the process of the court.

[7] Madhavi v. Thupran, 1987 SCC OnLine Ker 219

[8] Minu Kumari v. State of Bihar, (2006) 4 SCC 359 [Also refer to State Prosecutor, In re, 1972 SCC OnLine Ker 201]

[9] Madhavi v. Thupran, 1987 SCC OnLine Ker 219

[10] Parbatbhai Aahir v. State of Gujarat, 2017 SCC OnLine SC 1189

[11] Shiji v. Radhika, (2011) 10 SCC 705

[12] State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335

[13] Nagawwa v. Veeranna Shivalingappa Konjalgi, (1976) 3 SCC 736; State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 and M. Mohan v. State, (2011) 3 SCC 626

[14] Urmila Devi v. Yudhvir Singh, (2013) 15 SCC 624; Aroon Poorie v. Jayakumar Hiremath, (2017) 7 SCC 767

[15] Jagir Singh v. State of Haryana, 2006 SCC OnLine P&H 1276; Purshotam Mantri v. Vinod Tandon, 2008 SCC OnLine P&H 125

[16] Bindeshwari Prasad Singh v. Kali Singh, (1977) 1 SCC 57

[17] Including an order passed for dismissal of complaint for its non-prosecution

[18] (1986) 2 SCC 709

[19] Krishan Lal v. Sangeeta Aggarwal, 2009 SCC OnLine P&H 4894

[20] Order 9  Rule 4 of the Code of Civil Procedure, 1908 

[21] Order 9  Rule 2 of the Code of Civil Procedure, 1908 

[22] Order 9  Rule 3 of the Code of Civil Procedure, 1908  

[23] Order 9  Rule 7 of the Code of Civil Procedure, 1908 

[24] Order 9  Rule 13 of the Code of Civil Procedure, 1908 

[25] 249. Absence of complainant.—When the proceedings have been instituted upon complaint, and on any day fixed for the hearing of the case, the complainant is absent, and the offence may be lawfully compounded or is not a cognizable offence, the Magistrate may, in his discretion, notwithstanding anything hereinbefore contained, at any time before the charge has been framed, discharge the accused.

[26] 256. Non-appearance or death of complainant.— (1) If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day:

Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case.

(2) The provisions of sub-section (1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death.

[27] 141st Report on Need for Amending the Law as Regards Power of Courts to Restore Criminal Revisional Application and Criminal Cases Dismissed for Default in Appearance.

[28] 233rd Report on Amendment of Code of Criminal Procedure Enabling Restoration of Complaints (August, 2009)

[29] State of Punjab v. Shamlal Murari, (1976) 1 SCC 719

[30] Sarah Mathew v. Institute of Cardio Vascular Diseases, (2014) 2 SCC 62

Case BriefsHigh Courts

High Court of Karnataka: In its recent judgment, a Division Bench comprising H. G. Ramesh and John Michael Cunha, JJ. held that non-production of the accused does not grant the right to seek release on bail to the accused.

In the case present before the Court neither was the accused was produced before the Magistrate on time as mandated under Section 167(2)(b) and Section 209 of the Code of Criminal Procedure, 1973 nor was an express order passed remanding the accused to custody by the Magistrate. The petitioner contended that the remand order made under Section 309(2) of the Code expired and his remand thereafter was illegal. With regards to this argument, the Court observed that it was sufficient if the accused was in custody, it need not be a “lawful” one. It further observed that the accused couldn’t be released on bail merely because he was not present when the remand order was passed.

The Court clarified that non-production of the accused was only an exception, and must be applied only when the physical production of the accused is not possible on account unavoidable reasons, provided that the Investigating Officer makes necessary requisition supported by genuine documents for the extension of the remand. It added that though production of the accused for the purpose of extending the remand is not an empty formality, the extension could not be refused by the Magistrate merely on account of non-production, and the Magistrate must apply his discretion while executing the powers granted by the Code. [D. Gundappa v. State of Karnataka, 2017 SCC OnLine Kar 1149, judgment dated 05-06-2017]